I.- REGULATION

• The European Parliament adopts the Due Diligence Directive. Due diligence is the process by which companies can identify, prevent, mitigate and explain how they address actual and potential adverse impacts of their activities. On 24 April 2024, the European Parliament adopted the new Due Diligence Directive, agreed with the Council, which requires companies and their partners throughout the supply chain to prevent, end or reduce their adverse impacts on human rights and the environment. These impacts include slavery, child labour, labour exploitation, loss of biodiversity, pollution and destruction of natural heritage. The Directive will apply to EU companies and parent companies with more than 1,000 employees and a worldwide turnover of more than €450 million.
• The Third State-wide Collective Agreement for the Audiovisual Production Industry (technicians) is registered and published. It mainly applies to companies engaged in the provision of ancillary or complementary services to audiovisual production and those that have signed any kind of contract for the execution of audiovisual works or services. The agreement will remain in force until 31st December 2024. The wage tables for the years 2022, 2023 and 2024 are updated, with companies having a period of 3 months from the publication in the BOE to pay the corresponding wage differences, if any, with respect to the years 2022 and 2023, i.e. until 6th July 2024.
• Campaign by the Labour and Social Security Inspectorate against possible abuses in the trial period of employment contracts. The Work and Social Security Inspectorate is launching a campaign in which it warns that it will carry out a thorough review of employment contracts, both part-time and full-time, that are terminated due to failure to pass the probationary period, despite having exceeded their maximum duration. Special attention will also be paid to the termination of contracts of workers who fail to pass the probationary period, despite having been previously hired to perform the same functions.

II.- RELEVANT JUDGEMENTS

• Judgment of the High Court of Justice of Galicia (Social Division) no. 1158/2024, 4th March, Rec. no. 5647/2023.The risk of infringement of employees' rights to digital disconnection and privacy.

In the case in question, the worker had received several e-mails outside their working hours. Although the court of first instance declared that there was no infringement of the right to digital disconnection, on the grounds that these emails did not require reading or immediate response, the Court now declares that the right to digital disconnection has been infringed and establishes compensation of 300 euros in favour of the worker.

The reasoning of the Court is that the right to digital disconnection implies a double aspect, as it not only implies the right of the worker not to respond to communications from the employer or third parties, but also the employer's duty to abstain from contacting the worker outside of working hours.

In addition, the Chamber considers that the employee's right to privacy has been violated, establishing a compensation of 700 euros in this case, since the company transferred his data to third parties without having obtained his prior express consent for its use.

• Judgment of the High Court of Justice of Catalonia (Social Division), no. 817/2024, of 14th February, Rec. no. 6351/2023. The fine line between dismissal and voluntary redundancy.

The Chamber dismissed the dismissal claim brought by a worker who, after two years on leave to care for a family member, informed the company of her wish not to return to work and instead requested that she be dismissed, fraudulently, as her objective was to obtain the corresponding unemployment benefit.

The company refused to accede to this request, informing the worker that she would either return to her job or take voluntary redundancy. Faced with this situation, the worker did not go to work on the date set for her return to work, so the company proceeded to process her sick leave with the Social Security under the concept of ‘resignation/voluntary leave’.

The worker brought an action for dismissal against the company, but both the Social Court and the Chamber confirmed that the company's classification of the termination as voluntary redundancy was correct, insofar as the worker's fraudulent intent was demonstrated.

• Judgment of the Tribunal Superior de Justicia de Madrid (Social Division), no. 227/2024, 6th March, Rec. no. 1019/2023. Short-term sick leave is not considered to be a situation of sickness discrimination.

In this case, the defendant company notified the employee of the termination of their employment contract on the grounds that he had not passed the probationary period. However, prior to that communication, the worker had been on sick leave (temporary disability) for a short period of time, specifically fourteen days.

Although, initially, the Labour Court declared the dismissal of the worker null and void for breach of the fundamental right to equality and physical integrity, the Chamber upheld the company's appeal, arguing that the sick leave was of such a short duration that the worker was not a sick person, but rather a person who had a minor illness, which was not protected by the provisions of Law 15/2022, of 12th July, on equal treatment and non-discrimination. In the opinion of the Chamber, the contrary would imply the existence of a shield for the worker that contravenes the will of the legislator. Thus, in this case, in the absence of discrimination, the freedom of the parties to withdraw from the contract during the trial period prevails.

• Judgment of the High Court of Justice of Madrid (Social Division), no. 240/2024, of 6th March, Rec. no. 709/2023. Not every tense situation at work constitutes moral harassment.

The Chamber dismissed the claim for harassment brought by a worker who had previously been on sick leave (temporary disability) for anxiety and receiving pharmacological treatment. The company had a protocol for dealing with harassment, which was activated and the appropriate proceedings were carried out, which ended with the imposition of a disciplinary sanction on a worker.

The main reasoning of the Chamber is that not every attitude of conflict in the performance of work can merit the qualification of ‘moral harassment’, but that it is necessary to distinguish between conduct of real hostility, vexation and systematic persecution, from what may be a rigorous demand for certain work behaviour or an exercise of managerial power that does not seek to weaken the worker.

Therefore, the Chamber recalls that moral harassment should not be confused with confrontations and misunderstandings at work that occur within the company because the parties to the employment relationship defend conflicting interests.

• Judgment of the Supreme Court (Social Division), no. 478/2024, 14th March, Rec. no. 96/2022. The minimum five days' notice in the irregular distribution of the working day is not required in shift work.

The main subject matter of the dispute is whether the minimum notice period of five days, laid down in Article 34.2 of the Workers' Statute for the case of irregular distribution of the working day, can be extended to the change of shift.

The specific question concerns the provisions of the collective agreement of an airline company, which establishes a minimum notice period of 48 hours for shift changes due to unforeseeable incidents. Thus, the unions considered that this period did not comply with the minimum notice period of five days provided for this purpose in the Workers' Statute.

The High Court provides a vitally important interpretation of the law, clarifying that in shift work, it is not the length of the working day that changes, but its distribution. Consequently, the Chamber concludes that the collective agreement is in line with the Workers' Statute, since no minimum notice period is established for shift work (article 36).

• Judgment of the High Court of Justice of Madrid (Social Division) no. 203/2024, of 14^th March, Rec. no. 824/2023. Prevalence in the assessment of the evidence of the time register.

The worker claims financial compensation for allegedly having worked 302 hours of overtime. However, the overtime records do not show the existence of such overtime, but the worker claims that such hours are the result of conversations held in a WhatsApp group, through which the work schedules prepared weekly by the company were sent.

Contact Andersen's Employment team:

Victoria Caldevilla, Partner
Germán Martínez, Partner

III.- COMMENT OF THE MONTH: The future of compensation for unfair dismissal

At the end of March, it became known that the European Committee of Social Rights (ECSR) has issued a decision against the complaint filed by UGT in March 2022 that the dismissal system in Spain does not comply with article 24 of the European Social Charter (ESCS) (‘the right of workers dismissed without valid reason to adequate compensation or other appropriate redress’). The main argument of the complaint was that Spanish dismissal legislation is not sufficiently restorative or proportionate to the harm caused to workers by dismissal, nor does it ensure that it is dissuasive.

The ECSRC found that the Spanish system, which provides for a fixed compensation for unfair dismissal, equivalent to 33 days' salary per year of service, with a limit of 24 monthly payments, is not in line with the ECSRC. The ECSR's decision is not public, and the ECSR has submitted a preliminary report to the Committee of Ministers of the Council of Europe, which will issue a recommendation in July 2024.

Furthermore, on 20th March, the ECSRC published its Conclusions 2023 on the articles of the ESCR relating to children, family and migrants, in which, after analysing 36 possible violations of the ESCR by Spain, it concludes, in the case of dismissal of women workers during maternity leave, that the upper limit of the compensation scales does not allow a worker to be awarded a higher compensation depending on all the circumstances, as the courts can only order compensation within the limits of the scale.

The ECSRC's position is that the system of compensation ceilings provided for in Spanish law may not guarantee adequate compensation to compensate for all the damage suffered by workers in certain situations.

And it is true that this is the case when, for example, it concerns dismissals of workers with little seniority and lower salaries, and this ignores the impact of their personal and professional circumstances on the specific damage suffered.

This issue has already been resolved in the same way in similar claims brought by trade union organisations in Finland (2016), Italy (2019) and France (2022), stating that statutory compensation ceilings or amounts set according to certain parameters could lead to inadequate compensation in relation to the damage suffered.

Although the binding or non-binding nature of the decisions of the ECSRC is debated, the fact is that, to date, these countries have not modified their legislation in this area.

One thing is clear: Spain, like the rest of the EU countries, must comply with the provisions of the ECSR, so the ECSRC decision gives a clear boost to the modification of the legislation announced by the government in relation to compensation for unfair dismissal.

Given this situation, the question arises: what system can ensure the adequacy or reparatory effect of the compensation or be a deterrent? Should the courts be the ones to determine the amount of compensation for dismissal according to the damage caused in each individual case?

There are several possibilities:

• return to the situation prior to the 2012 labour reform, re-establishing the compensation formula (also taxed) of 45 days' salary per year of service with a ceiling of 42 monthly payments, as well as processing wages;
• establish a legal minimum amount of compensation, for example 6 months, as in other countries;
• give the worker the option of reinstatement or compensation.

In any case, any alternative would entail a modification of the Workers' Statute and, for practical purposes, would foreseeably make dismissal more expensive, which could condition hiring, although, at least, it would be desirable to establish scales that would provide legal certainty.

Another alternative would be to establish additional compensation to repair the damage caused by dismissal in each specific case, depending on:

• the conditions of the dismissed worker, such as age, family situation, ability to find work, health, etc..;
• the situation in the sector;
• the actual damages suffered and proven (e.g. whether the worker is entitled to unemployment benefit or subsidy, whether he/she voluntarily left his/her previous employment relationship to join the company where he/she is dismissed shortly afterwards, etc.).

The problem is that, if certain objective parameters are not determined, it would be left to the exclusive discretion of the courts to establish the amounts of compensation, giving rise to a dispersion of criteria and, therefore, to greater litigiousness, even complicating the evidentiary phase of dismissal proceedings. In short, all this would contribute to creating a situation of legal uncertainty.

Faced with this uncertainty, it would be reasonable to wait for the publication of the ECSRC ruling in a few months' time and, from then on, to negotiate within the framework of social dialogue the legal formula for calculating compensation for unfair dismissal to comply with the provisions of the SES. All of this under the fundamental premise of respect for the principle of legal certainty, which is necessarily achieved by establishing certain parameters or objective scales.

Until then, the debate has been opened.

Elena Esparza, Partner

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